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The Delhi High Court in Review: March, 2020 [Part II]

Review of Judgments and orders passed by the High Court in March.

Amit George

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief over-view of the important pronouncements of the High Court of Delhi over the period of the relevant month in review.

While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity.

In continuation of the judgments discussed in Part I of the column, below are the further judgments from the Delhi High Court for the month of March, segregated as per practice areas.

Intellectual Property Rights

In Bayerische Motoren Werke AG v. Om Balajee Automobile (India) Private Limited [1], the Court held that even if the infringing mark was being utilised in relation to a product which belonged to a completely different class and category i.e. e-rickshaws, as opposed to that of the plaintiff which was engaged in the business of manufacture and sale of high end automobiles, the principle of dilution of a mark as recognised under Section 29(4) of the Trade Marks Act, 1999 (‘Trade Marks Act’) would come into operation and the defendant would be liable to be restrained from using the deceptively similar mark.

In Radico Khaithan Limited v. Union of India [2], after an extensive review of the treatment of registration of a descriptive mark containing a geographical name, the Court held that though a geographical name could form part of a trade mark, the standard of proof to demonstrate that the same could be registered is on the higher side, and mere evidence of sale and advertising would not suffice in this regard and the party would be required to demonstrate that the mark in question had also acquired a secondary distinctiveness. The Court further proceeded to enumerate various factors which could be utilised in order to determine whether the mark in question was deserving of being registered; which are as follows:-

“(a) Whether the geographical name has some connotation with the products in question for e.g., describing a feature or purpose of use; characteristic of the geographical location; association of some kind between the product and the geographical location;- OR is the same an arbitrary adoption;

(b) Whether the geographical name denotes the character or quality of the products;

(c) The extent of use of mark, and the independent reputation/goodwill of the mark;

(d) Whether granting of registration/protection would create an unfair monopoly of a commonly used name;

(e) Whether other businesses / competitors would be prevented from using the mark/name in a descriptive sense.

(f) Whether the mark/name itself does not have any reputation prior to the usage by the applicants as a mark and hence monopoly can be granted;

(g) Whether the usage of mark/name would need to be restricted to label/ logo forms so that non-descriptive use of the said name can be permitted to the third parties;

(h) The association in the mind of the public/relevant class of consumers/ relevant trade channel of the geographical name with the applicants.”

In Peps Industries Private Limited v. Kurlon Limited [3], the Court held that even when prior use is established by a defendant, if the said prior use was intermittent in nature and not voluminous, then the same would not qualify as a defence under Section 34 of the Trade Marks Act. The Court refused to grant an interim injunction to the plaintiff, which was a manufacturer of mattresses, inasmuch as it found that the relevant mark ‘NO TURN’ was descriptive in nature and the plaintiff had failed to demonstrate that the said mark had achieved distinctiveness and become a well-known mark. The Court further observed that in the case of conflict between two registered proprietors of the same mark, an evaluation as to which proprietor had a better and superior entitlement under the common law would be determinative of the ultimate entitlement.

In Genentech Inc. v. Dugs Controller General of India [4], it was observed that when the Court had specifically granted liberty to the parties to amend their respective pleadings after inspection of the documents which were stated to be confidential, then it was impractical to argue that the confidentiality-club to be formed would include only an external expert and not an internal expert, inasmuch as it was the latter who could effectively assist the parties in conceptualizing the requisite amendments.

In Kishore Kumar v. Union of India [5], the Court, based on feed-back from concerned stakeholders, directed the Registrar of Trademarks to put in place various remedial measures to streamline the process of registration.

Labour And Service

In Sudesh Sharma v. Directorate of Education [6], the Court held that in matters of re-employment, the managing committee of the school concerned would be best placed to determine the suitability of the candidate in question, and therefore under the scheme of the Delhi School Education Act, 1973 and the Rules framed thereunder, the directorate of education could not sit in appeal over a decision taken by the managing committee of the school to refuse re-employment on the ground that the person concerned was unfit.

In Skyzed Secutitask & Services Private Limited v. Sanjeev Kumar [7], the Court reiterated that it was not open to a party that has not appeared before the Labour Court and had failed to contest the proceeding, to subsequently make a grievance about the Labour Court having accepted the case of the workman at face-value.

In Lieutenant Colonel Nikhil Kumar Singh v. Union of India [8], the Court, in exercise of its writ jurisdiction, entertained a challenge to an interlocutory order passed by the Armed Forces Tribunal on the merits.

In Krishan Kumar Kashyap v. The Statesman Limited [9], the Court observed that a complete absence of any averments in substantiation of the fact that the workman was not gainfully employed post the termination of employment, would be a valid ground to refuse the relief of payment of full back-wages upon the termination being found to be illegal.

In Ex NB Risaldar Dilbag Singh v. Union of India [10], the Court upheld an order of dismissal from service under the Army Act, 1950 in a case where a petitioner was convicted of causing the dowry-death of his wife under Section 304B of the IPC inasmuch as it noticed that in such circumstances, there could be no justification for conversion of the punishment for dismissal from service into a punishment for discharge from service.

Land Acquisition

In Union of India v. Sardar Singh (Deceased through LRs) [11], the Court reiterated that interest was liable to be paid on the solatium also inasmuch as the same was an integral part of the compensation awarded to landowners under Section 23 of the Land Acquisition Act, 1894 (‘LA Act, 1894’) and further observed that unless there was an express rejection of the interest on the component of solatium in the award, the executing court was required to enforce the same.

Limitation

In Vinod Kumar Kaushik v. Madan Lal Arora (Deceased through LRs.) [12], the Court while rejecting the plea of the appellant for the exclusion of time in terms of the provisions laid down under Section 14 of the Limitation Act, 1963 (‘Limitation Act’) when such exclusion was being sought on the ground that the impugned sale deeds had been challenged before the sub-divisional magistrate, held that such exclusion could not be granted inasmuch as the sub-registrar’s office would not qualify as a “Court of First Instance or of Appeal or Revision” in terms of the said provision. In addition, the Court reiterated that the appellant could also not pray for condonation of delay by invoking Section 5 of the Limitation Act for the reason that the said provision was only applicable to applications and not suits.

In Aura Synergy India Private Limited v. New Age False Ceiling Company Private Limited [13], the Court held that the limitation for filing an application for striking off a written statement under Order VIII Rule 1 of the CPC would be three years from the date of filing of the written statement as provided under Article 137 of the Schedule to the Limitation Act.

In The Assistant Director, Directorate of Enforcement, New Delhi v. Omar Ali Obaid Balsharaf [14], the Court held that any delay beyond the period of 120 days in filing an appeal against the order of the Appellate Tribunal under Section 42 of the Prevention of Money Laundering Act, 2002 cannot be condoned.

Matrimonial Disputes, Custody and Maintenance

In Sandeep Gulati v. Divisional Commissioner, office of the Secretary-cum-Divisional Commissioner, Department of Revenue, Government of NCT of Delhi [15], the Court observed that under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in-order to seek a relief of eviction of the children from the property, the senior citizen is merely required to show that the property in question is required to be protected, and does not have to necessarily plead and demonstrate that he/she is in need of maintenance from the children or has suffered any ill-treatment at their hands.

In Manpreet Kaur v. Harjyot Singh [16], the Court held that a civil suit filed for recourse against defamation and interference with judicial proceedings by the spouse would not fall under explanation (d) to Section 7 of the Family Courts Act, 1984 and/or within the expression of ‘family litigation’, and accordingly the civil court would not be barred in exercising jurisdiction in relation to the said matter.

Personal Law and Succession

In Sushil Kumar Agarwal v. Ravi Narayan Agarwal [17], while observing that merely because one of the co-sharers was in possession of a separate part of the property for a long period of time, it would not imply that a partition has in fact taken place between the co-owners, the Court further reiterated that in a case governed by the un-amended Section 6 of the Hindu Succession Act, 1956 (‘Hindu Succession Act) when a male had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through the said female relative, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

In Chanchal Chopra (Deceased through LRs) v. Subhash Duggal [18], the Court reiterated that in a situation where a woman acquires a right in a property by virtue of a pre-existing right of maintenance, Section 14(1) of the Hindu Succession Act would be attracted and thereby make her an absolute owner of the property.

Rent Control

In Kaushala Devi Bhardwaj v. Bagwan Singh Bhandari [19], while reiterating that leave to defend was not to be granted mechanically in all cases where the eviction was sought on the ground of additional accommodation, the Court further held that a landlord was entitled to seek room for his visiting married daughters in case of insufficient accommodation and that the need of the landlord to have a pooja-room was also justified as a bona-fide need.

Right To Information

In Ved Prakash Aggarwal v. Deputy Registrar (CR-1), Central Information Commission [20], the Court reiterated that the provisions of the Right to Information Act, 2005 would be inapplicable when the applicant sought to obtain certified copies of an order passed in respect of a case pending before a Court or a Tribunal.

Specific Relief and Property

In Paul Sales Pvt. Ltd. v Hari Darshan Sevashram Pvt. Ltd. [21], the Court reiterated that a contract, whether oral or written, which is dependent upon a personal qualification and which is further determinable in nature cannot be sought to be enforced in view of Section 14(1)(c) of the Specific Relief Act, 1963.

In Mukesh Sharma v. Swarn Lata Thukral [22], the Court reiterated that a party which takes a plea of adverse possession has an extremely heavy onus to discharge, and is further specifically required to prove hostile possession.

In Prem Lal v. Deepak Badhwar [23], the Court held that in the absence of any serious cloud over the title of the plaintiff with respect to the property in question, there was no need to incorporate a prayer for declaration of title and a simpliciter suit for possession was maintainable.

In Ram Dhari Jindal Memorial Trust (Registered) v. North Delhi Municipal Corporation [24], the Court recommended the creation of better interface infrastructure in order to expedite the consideration of sanction of building-plans by the concerned authorities inasmuch as it found that in the present circumstances, most of the applications where pending for a long period of time without effective consideration, thereby causing grave prejudice to the applicant.

Tax, Excise and Customs

In Aargus Global Logistics Private Limited v. Union of India [25], the Court held that despite the coming into operation of the goods and services tax regime under the Central Goods and Services Act, 2017 (‘CGST Act’), the initiation of fresh investigations and enquiry verification in the respect of acts and omissions under the erstwhile service tax regime, including under Rule 5A of the Service Tax Rules, 1994 would continue.

In Hero Motorcorp Limited v. Union of India [26], the Court held that after the coming into operation of the CGST Act, the erstwhile policy of providing area-based exemption for the purpose of attracting investment stood dissolved, and a party could not be heard to urge that it was entitled to a continuation of the status-quo by invoking the principle of promissory estoppel.

In Indus Towers Limited v. Assistant Commissioner of Income Tax Circle 12(1) [27], the Court observed that a party which was enjoying the benefit of an interim order restraining the recovery of demand amount pertaining to an assessment year could not seek to disregard a concomitant condition imposed in the same order requiring it to cooperate in early disposal of the pending appeal before the Commissioner of Income Tax (Appeal).

In Paradigm Geophysical Private Limited v. Commissioner of Income Tax (International Taxation)-3 New Delhi [28], the Court while examining whether the income derived by the petitioner qualified as royalty for provision of technical services within the meaning of Section 44DA of the Income Tax Act or whether it fall within the meaning of Section 44BB of the Act, held that the latter provision would apply when the assessee was engaged in the business of providing services or facilities in relation to prospecting, extraction or production of mineral oils, and the former would apply when the income earned by such assessee takes the colour of royalty or fees for technical services. The Court further observed that when the assessee had not segregated its activities into supply of software, on the one hand, and provision of maintenance/support services, on the other, then the Commissioner of Income Tax was required to apply its mind to this aspect and render a factual finding in this regard.

In Chaque Jour HR Services Private Limited v. Union of India [29] and in Industrial Personnel Security Services Private Limited v. Commissioner of Central Goods and Services Tax Delhi South [30], the Court observed that the rejection of a declaration filed under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 should ordinarily be preceded by an opportunity of hearing having been granted to the applicant.

In DCIT,CIRDE-25(1),New Delhi v. Tata Power Delhi Distribution Limited [31], the Court held that the disallowances made under Section 32, 40(a)(ia), 40A(3), 43B, etc. of the Income Tax Act, 1961 (‘Income Tax Act’) and other specific disallowances related to the business activity against which the Chapter VI-A deduction has been claimed, result in enhancement of the profits of the eligible business, and that a deduction under Chapter VI-A of the Income Tax Act is admissible on the profits so enhanced by the disallowance.

In Multitex Filtration Engineers Limited v. Union of India [32], the Court held that merely because the refund applications in question were made in relation to supplies which were made under the international competitive bidding mode of the Foreign Trade Policy, it could not be said to be a general principle that there was no eligibility for refund of Terminal Excise Duty (‘TED’). The Court further observed that there could be several such supplies which were in fact liable for imposition of excise duty, and would accordingly be entitled to a TED refund.

In Pr. Commissioner of Income Tax, Delhi-2, BSES Yamuna Power Limited [33], the Court reiterated that when the reasoning of the Commissioner of Income Tax in disallowing identical expenditure had been consistently rejected for several previous assessment years, then, in the absence of any significant change in the factual scenario, the Income Tax Appellate Tribunal could not be faulted in applying the principle of consistency in favour of the Assessee.

Tender and Blacklisting

In Its My Name Private Limited v. Directorate General of Foreign Trade [34], the Court held that the power to cancel the license of an entity under Rule 10 of the Foreign Trade (Regulation) Rules, 1993 is not untrammelled in nature and has to be preceded by the issuance of a show-cause notice with material particulars and by the granting of a reasonable opportunity of being heard.

In Indian Railway Catering Tourism Corporation Limited v. Jayanta Kumar Gosh Outdoor Catering Private Limited [35], the Court held that the clauses which mandate stringent standards of disclosure by a prospective bidder are incorporated for a laudable purpose to discourage suppression of material facts and fraudulent disclosures, and the imposition of an appropriate monetary penalty was justified when a bidder had breached the said condition.

Dr. Amit George is an Advocate practicing before the High Court of Delhi.
Dr. Amit George is an Advocate practicing before the High Court of Delhi.

The author is Dr. Amit George, an Advocate practicing before the High Court of Delhi. The author would like to place on record his appreciation for the assistance provided by Rishabh Dheer, Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon, Advocates.

[1] Judgment dated 23.03.2020 in CS (COMM.) 292/2017.

[2] Judgment dated 02.03.2020 in W. P. (C) 6340/2019.

[3] Judgment dated 16.03.2020 in CS (COMM.) 174/2019.

[4] Judgment dated 02.03.2020 in CS (OS) 3284/2015.

[5] Judgment dated 02.03.2020 in W. P. (C) 6340/2019

[6] Judgment dated 02.03.2020 in W. P. (C) 2371/2020.

[7] Judgment dated 02.03.2020 in W. P. (C) 2375/2020.

[8] Judgment dated 13.03.2020 in W. P. (C) 2809/2020 (DB).

[9] Judgment dated 04.03.2020 in L.P. A. 689/2019 (DB).

[10] Judgment dated 03.03.2020 in W. P. (C) 2475/2020 (DB).

[11] Judgment dated 04.03.2020 in CM (M) 1034/2010.

[12] Judgment dated 02.03.2020 in R. F. A. 522/2019.

[13] Judgment dated 20.03.2020 in CS (COMM.) 799/2017.

[14] Judgment dated 12.03.2020 in CRL. A. 95/2020.

[15] Judgment dated 13.03.2020 in W. P. (C) 2761/2020.

[16] Judgment dated 12.03.2020 in FAO (OS) 262/2019 (DB).

[17] Judgment dated 14.03.2020 in CS (OS) 224/2017.

[18] Judgment dated 20.03.2020 in CS (OS) 122/2017.

[19] Judgment dated 04.03.2020 in RC. REV. 547/2018.

[20] Judgment dated 11.03.2020 in L. P. A. 109/2020 (DB).

[21] Judgment dated 16.03.2020 in CS (COMM.) 732/2017.

[22] Judgment dated 11.03.2020 in R. S. A. 51/2020.

[23] Judgment dated 13.03.2020 in R. F. A. 409/2018.

[24] Judgment dated 05.03.2020 in CM (M) 1725/2019

[25] Judgment dated 06.03.2020 in W. P. (C) 2580/2020 (DB).

[26] Judgment dated 02.03.2020 in W. P. (C) 505/2020 (DB).

[27] Judgment dated 04.03.2020 in W. P. (C) No. 10289/2019 (DB).

[28] Judgment dated 13.03.2020 in W. P. (C) 1370/2019 (DB).

[29] Judgment dated 11.03.2020 in W. P. (C) 1999/2020 (DB).

[30] Judgment dated 11.03.2020 in W. P. (C) 2244/2020 (DB).

[31] Judgment dated 11.03.2020 in ITA 186/2020 (DB).

[32] Judgment dated 12.03.2020 in W. P. (C) 10512/2019 (DB).

[33] Judgment dated 13.03.2020 in ITA 195/2020 (DB).

[34] Judgment dated 18.03.2020 in W. P. (C) 1045/2020.

[35] Judgment dated 05.03.2020 in L. P. A. 87/2020 (DB).

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